Know your service rights and responsibilities - Department of Public ...

Batho pele • People first
Know your
service rights
and responsibilities
YOU, the police, courts and correctional services
(English)
11

Daily life and its problems
MINISTER’S FOREWORD FOR PHASE 2 OF THE KYSR BOOKLET
The year 2009 marks the 15th year of our democracy as the South African government. Since
1994 our government has been faced with transformation challenges that required a shift of
focus from a fragmented government that was ineffective and inefficient to the integration
of resources, review of legislation, policy formulation and the development of integrated
transformation and service delivery programmes. The white paper on the Transformation of
the Public Service was amongst the policy documents that required a complete change of a
service delivery approach that puts “People First” in whatever that government does. Hence
the name BATHO PELE.
Batho Pele involves an integrated process that puts an emphasis on the eight principles and
the belief set that endorse the Bill of Rights enshrined in our Constitution. Government and
public servants are encouraged to welcome complaints and to see them as an opportunity to improve services. They
have to deal with complaints so that weaknesses can be identified and quickly rectified for the good of the citizens.
Hence, the need for well-run customer care centres and integrated monitoring and evaluation systems. Customer care
centres or units have to work very closely with all line functions when dealing with all complaints raised by citizens, who
are our service beneficiaries - hence the belief set that puts an emphasis on the sense of belonging, serving and caring
for our fellow citizens.
The Know Your Service Rights Campaign seeks to address the redress principle as citizens still feel that they have not
yet been able to easily access public services in a manner that they would like. As this principle is based on laws like the
Promotion of Justice and Administrative Act (PAJA), Promotion of Access to Information Act (PAIA), Promotion of Equality
and Prevention of Unfair Discrimination Act (PEPUDA) and our Constitution, reference has also been made to these
laws and their relevance to the whole issue of access to service delivery that has been highlighted in this booklet.
A need was also identified to work very closely with the Justice Cluster departments like South African Police Services
(SAPS), Correctional Services, the Independent Complaints Directorate and the Department of Justice and Constitutional
Development in the development of the content of this booklet.
I trust that the South African citizens who are the key service beneficiaries of public services will continue to ensure that
they are kept abreast of government development programs and improved means of accessing services. Information
contained in booklets like these should continue to be shared with relatives, friends, neighbours, school children,
work colleagues and members of society at large. We as government are committed to improving the lives of South
Africans.
I would like to extend my appreciation to the Justice Cluster team members and all other role-players who have played
a valuable role in making this second booklet a success.
My special thanks to all of those who have played a key role in distributing the first booklet based on the Social Cluster
services, especially the Government Communications Information Services (GCIS), national and provincial departments,
municipalities, Community Development Workers, the media and other civil society organisations.
Mr Masenyani Richard Baloyi
MINISTER OF PUBLIC SERVICE AND ADMINISTRATION
New laws and services can make your life easier IF you know how to use
them. Share this information with others – especially those who cannot read.
ISBN 978-1-920345-20-4
22

INDEX
OVERCOME PROBLEMS WITH KNOWLEDGE 4
The Promotion of Administrative Justice Act (PAJA) 5
The Promotion of Access to Information Act (PAIA) 6
The Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) 7
1. REPORTING CRIME 8
General Crime: How the Criminal Justice System Works 8
Report Every Crime 9
Service Charter for Victims of Crime 10
Domestic Violence 12
How to Apply for a Protection Order 13
The SAPS Commitment to the Victim 16
Commercial Crime 17
2. SERVICES TO HELP YOU 18
Useful Numbers 20
3. UNDER ARREST 21
Powers of the Police 21
Your Rights if Arrested 22
Bail 23
When a Child is Arrested 27
The Child Justice Act 75 of 2008 28
4. WHO DO I COMPLAIN TO 31
The Independent Complaints Directorate 32
Useful Numbers 32
5. DEALING WITH THE COURTS 34
Know which Court to go to (Criminal Courts, Civil Courts) 35
High Courts 38
Appeals and Reviews 42
Civil Cases - You Don’t Have to Go to Court 43
Small Claims Court 44
Other Civil Cases 47
6. DIVORCE AND MAINTENANCE 49
Divorce 49
Maintenance 53
7. PAYING FOR A LAWYER 54
8. CORRECTIONAL SERVICES 57
Contributing to Parole Board Meetings 58
9. THINGS WE NEED TO KNOW 59
Owning a Firearm 59
Reporting the Estate of a Deceased Person 59
10. REDRESS 60
Know These Important Laws 60
Stand Up for Yourself! 61
Organisations which can help 62
33

overcome problems
with knowledge
We live in challenging times – theft, murder, rape. We hear about these
regularly. Crime in South Africa affects everybody, but certain vulnerable groups
are more affected than others. And not only crime – we see families breaking up,
husband against wife in court, children neglected and neighbours fighting.
One way to overcome problems is to:
• Know the law
• Know your rights
• Know your responsibilities, and
• Know where to go for help.
This book will help you. We will look at what
you can expect, and the services available to
you, from the police to the courts to correctional
centres and remand detention facilities.
What can we do
These are places most of us would rather not go to. Yet often we must.
Do you find yourself frustrated or confused when dealing with matters
involving the police and courts What services can you expect when you
or a family member is incarcerated These are questions which will be
addressed in this book. We need to know the law, and how the law helps
us, so that we can help ourselves better.
Batho Pele - People First
Batho Pele is the Sotho expression for “People First”. Every government employee must
know and be guided by the Batho Pele principles, which are:
• Consultation: People must be consulted about the level and quality of public services
they receive and wherever possible be given a choice.
• Service standards: People should be told what level and quality of public services they
will receive, so that they know what to expect.
• Access: All citizens should have equal access to the services to which they are entitled.
• Courtesy: All people should be treated with courtesy and consideration.
• Information: People should be given full, accurate information about the services they receive.
• Openness and transparency: People should be told how government departments are
run, how much they cost, and who is in charge.
• Redress: If a promised standard of services is not delivered, people should be offered
an apology, an explanation and a speedy remedy. When complaints are made, people
should receive a sympathetic and positive response.
• Value for money: Public services must be provided economically and efficiently.
44

The law stands up for you
Many of us deal with government without even realising it. When dealing
with any organ of state, we are protected, firstly, by our Constitution,
which says that we have certain rights. Four important rights, outlined in
our Constitution are:
• the right to fair treatment by government
• the right not to be unfairly discriminated against
• the right to information on matters that concern us
• the right to be treated with dignity.
Three Acts of Parliament make these
rights real and practical. If any employee of
government breaks one of these laws, there
are organisations that we can complain to, to
see justice done.
The Promotion of Administrative Justice Act (PAJA)
The Promotion of Administrative Justice Act (PAJA) is a very important law. It says that
government must act fairly when it takes decisions that affect you. It gives you the right to ask for
written reasons for decisions that have been made, and provides a way for you to appeal against
decisions that you do not agree with.
Specifically, the Act says that when dealing with organs of state, about matters that affect you,
you can expect:
• to be told what decision is being planned before the decision is made
• to be allowed to voice your opinion before the decision is made
• to be informed about the outcome
• to be informed that you have the right to appeal, and how to do so
• to be informed that you have the right to take a negative decision (to court) on judicial review,
and how to do so
• to be given reasons, in writing, why a certain decision was made.
55

What are organs of state
Organs of state mean
• the national government
• provincial government
• local government (municipalities)
• the army
• the police
• parastatals like Telkom, ESKOM, SABC,
etc.
• Correctional Services.
PAJA protects you
The provincial government
plans to build a correctional
centre or remand detention
facility in our area. It
cannot go ahead until it
• informs us
• listens to us
• tells us how to appeal
• gives us written
reasons.
I can expect fair treatment
from any of these bodies,
according to PAJA and PAIA!
I sell handbags on the street.
The municipality cannot evict me
before it informs me, listens to
me, gives me a chance to appeal
and gives me its final decision,
with reasons, in writing!
The Promotion of Access to Information Act (PAIA)
The Promotion of Access to Information Act (PAIA) deals with our right to have access to information
about matters that concern us, held by organs of state and private bodies.
Specifically, the Act says
• Organs of state, excluding courts, must make information available to individuals and
organisations.
• Private companies must make information available if it will help the individual or organisation
to exercise one of its Constitutional rights.
• All organs of state must appoint an Information Officer, whose job it is to help members of the
public to get the information they need.
I was a witness in a murder trial.
The suspect was found guilty and
incarcerated. I have a right to know the
date of his release, and to be informed
about, and make contributions to, his
parole meeting, because they affect me.
I applied for
maintenance from the
father of my child at
the maintenance court,
but my application was
rejected. I have a right
to be told why.
66

Promotion of Equality and Prevention
of Unfair Discrimination Act (PEPUDA)
This Act makes it unconstitutional for any public or private body, or individual, to unfairly discriminate
against anyone on the grounds of race, gender, pregnancy, marital status, ethnic or social origin,
colour, sexual orientation, age, disability, religion, conscience, belief, culture or language. The Act
also makes provision for the establishment of Equality Courts, which deal with complaints of unfair
discrimination, which is based on these grounds and any other ground that affects the dignity of a
person.
In the event of discrimination in the work place, you may report the incident to your labour union or
the Department of Labour. In other events of discrimination you may report it to the Human Rights
Commission. When seeking help from a government organisation, or when dealing with any private
company, you have the right to be treated fairly and with respect for your dignity as a human being,
no matter who you are.
The South African Human Rights Commission (SAHRC) may be approached if the right to equality
is threatened or violated.
I’m HIV-positive, but that should
mean nothing to the government
official serving me. I expect to be
treated the same as everyone else;
that is, with respect.
I may look different to you, and
believe things you don’t believe,
but that does not give you the
right to put me down or treat
me with disrespect!
I’m one of the many South
Africans who work for a
government department.
I am beginning to understand
what the Constitution, Batho
Pele and the laws of our
country mean to us. I serve
the people - not the other way
around.
Exactly. I, too, work for a government
department. We need to remember that
laws like PAIA, PAJA and the Equality
Act can only go so far. They are all
about respect. It is up to us to make
this respect a daily reality. Let’s respect
and really serve the people who come
to us for help! Let’s take to heart the
principles of Batho Pele, and practise
them in every aspect of our jobs.
For more information on any law or service in this book, visit www.dpsa.gov.za
77

1. Reporting crime
General crime: How the criminal justice system works
When a crime is committed against us, we become victims of crime and
suffer physical and emotional shock. We have to deal not only with the
personal effects of the crime, but also with the police, doctors and nurses (if
we are injured as a result of the crime), and the courts, and sometimes even
with the correctional system (remand detention facilities and correctional
centres). We need to know what services we can expect from each.
Joe and his
family were
attacked
at home. A
serious crime
has been
committed
against them.
Joe wants to see justice done. As he pursues this case, he may be
involved with the following six organs of state:
• The South African Police Service (SAPS)
• The Department of Justice and Constitutional Development (the courts)
• The National Prosecuting Authority (prosecutors)
• The Department of Health (doctors and nurses who provide medicolegal
examination in cases of injuries)
• The Department of Social Development (social workers who provide
counseling and referrals to places for counseling or shelters)
• The Department of Correctional Services (correctional centres and
remand detention facilities)
CRIME
The POLICE
SAPS
receive report of
crime, investigate,
prepare case for
prosecutor.
THE COURT
The Department
of Justice and
Constitutional
Development
decides if accused
is guilty or not.
CORRECTIONAL
SERVICES
Different possibilities:
Community
supervision,
remand detention,
incarceration.
Joe reports the crime.
Joe is called to testify in court.
Joe has the right to be
kept informed of the
offender’s release date
and parole date and be
given a chance to make
representations to the
Parole Board.
Once a crime has been committed by an adult, six government departments get involved.
When a child has committed a crime, the Department of Social Development also has to be
involved in terms of the Child Justice Act (see also page 27). The first step is to report
the crime. If we remain silent, we will never see the criminals brought to justice. If we
report the crime, and insist on good service from the police and the courts, we can help stop
criminals in their tracks, and help the investigation by giving information needed.
88

Report every crime
To report crime:
• If it is an emergency, dial 10111.
• If it is not an emergency, report the crime to your nearest police station as soon as possible.
• Give a statement.
• You will be given a CAS number. CAS stands for Crime Administration System. Keep that
number.
You have the right to information on the progress of the case. Write down the name, as well
as the rank, on the name tag of the official to whom you gave your statement. Make sure you
have the correct information.
Thank you for reporting this
crime, Sir. Here is your CAS
number.
May I have your name, so that
when I phone to make enquiries, I
can say whom I reported this to
Certainly, Sir.
Joe has the right to excellent service from the police. Minimum standards have
been set, and employees of SAPS, the courts, prosecutors, doctors and nurses,
social workers and parole board officials (from the Department of Correctional
Services) must comply. These standards are explained in the Minimum Service
Standards for Victims of Crime.
99
The complainant should inform the
police officer if he or she:
• changes his address or
telephone number
• goes away for a long time
• receives new information
regarding the case
• is intimidated by the suspect
or members of the suspect’s
family
• is offered money to withdraw
the case.

SERVICE CHARTER FOR VICTIMS OF CRIME in South Africa
You have a right to be treated with fairness and with respect for
your dignity and privacy.
The Service Charter for Victims of Crime says:
You have the right to be treated with fairness and with
respect for your dignity and privacy.
Police and court officials must attend to you promptly, and interview you
in your preferred language (if possible) and in private (if necessary).
You have the right to receive information.
• You have the right to be informed by the police and other service providers of the services
that are available to you, e.g. medical services, places of safety, counselling, etc.
• You have the right to offer information: You have the right to offer information during the
criminal investigation and trial. You have the right to offer information in your own language.
• You have the right to receive documents that the law entitles you to have.
• You have the right to ask for and receive information about court dates, witness fees and the
witness protection programme.
• You have the right to know about the status of the case at any time, whether the offender has
been arrested, charged, granted bail, convicted or sentenced.
• You have the right to be told which proceedings you may attend, and you may ask the prosecutor
to inform your employer of the dates on which you will be absent from work for this reason.
• You have the right to request the reason why a person you reported is not being prosecuted.
You have the right to protection.
You have the right to be free from intimidation and fear. If you comply with certain requirements,
the police must apply for you to be placed in a witness protection programme.
You have the right to assistance.
• You have the right of access to social and health assistance.
The police and others must inform you about both your rights
and the services available to you.
• You have the right to the services of an interpreter.
• You have the right to sensitivity and privacy in matters relating
to sexual violence, domestic violence and child support.
1010

You have the right to compensation.
My home was
badly damaged
in this crime.
I would like
to request a
compensation
order against
the person
who did it.
• You have the right to compensation for loss
or damage to property if a crime is committed
against you.
• You can ask the prosecutor for a compensation
order to be granted against the guilty party.
A compensation order is an order from the
court to the accused/offender to give the
victim a sum of money for loss or damage
to property.
• If you are granted a compensation order, the
prosecutor must explain it and how to enforce
it, and the Clerk of the Court must help you
to enforce it.
• If you are not granted a compensation order,
you can start civil proceedings against the
accused. This is usually the case where the
financial impact of the damage is difficult
to work out, i.e. in cases of psychological
damage or pain and suffering.
You have the right to restitution.
• You have the right to restitution where your goods or property have been damaged. Restitution
means the offender gives back or repairs the stolen or damaged property. The prosecutor must
inform you about what restitution involves, and the clerk of the court must help you to enforce
this right.
Well, it’s good to know
that my rights are
protected too, and not
just the offender’s.
Exactly. And it’s not just an
empty document. If these
minimum standards are not met,
you have the right to complain,
and the police must inform you
how to do so. See page 31, Who
do I Complain to
Informed citizens insist on excellent service
1111

Domestic Violence
Kuselwa is regularly beaten by
her boyfriend.
Estelle is sexually abused by
her father.
Mrs Dlamini is a pensioner. Her
grandchildren use the money
from her social grant for
their personal entertainment
and neglect her. They are not
working or willing to work.
PHYSICAL ABUSE SEXUAL ABUSE ECONOMIC ABUSE
Physical, sexual, verbal and economic abuse are all forms of domestic violence, and the victims
can seek Protection Orders.
Other forms of domestic abuse are:
• Verbal abuse: insulting, degrading, swearing
at or name-calling, on a repeated
basis.
• Intimidation: any behaviour that is threatening to another person.
• Harassment: repeatedly doing unwanted things to annoy another
person or to make their life difficult, unwanted phone
calls, constantly appearing at their place of work,
emotional, verbal and psychological abuse, stalking,
damage to property, illegal entry to property,
controlling behaviour, etc.
Both men and women can be victims, as well as perpetrators of abuse. Abuse is a
crime, and must be dealt with.
Find out more about abuse and the law at www.doj.gov.za
1212

Two options
You have two options when dealing with domestic violence.
You can apply for a Protection Order or you can lay a charge - or both.
A Protection Order is a document ordering a person to stop committing
certain acts or else face arrest. It gives the abuser a chance to change
his ways. He will not have a criminal record.
The power in the Protection Order is that with it, you are issued with a
warrant of arrest, to keep and use against the abuser if he breaks the
terms of the Protection Order.
Laying a charge means that the police will investigate and may arrest the
abuser, if the conduct of the abuser constitutes a crime.
You can apply for an interim Protection Order for immediate protection.
How to apply for a Protection Order
Kuselwa, you don’t have
to accept this kind of
treatment. No person
has the right to beat or
degrade another person
verbally, or in any way. If
you don’t want to charge
him, at least apply for a
Protection Order!
How
At your nearest
Magistrate’s Court.
• Report the incident at your nearest police station. Bring any documents that will help prove
that you have been abused, e.g. a doctor’s report. The police will help you to make an
affidavit, which is a formal statement you can use in court.
• Go to your nearest Magistrate’s Court. Take the affidavit with you. Ask to see the Clerk
of the Court. The Clerk will help you to fill in the correct forms and take you to a Magistrate
who will listen to your story and decide whether to grant the Protection Order or not.
1313

• Take the Protection Order to the police. Ask them to serve the Protection Order on your behalf.
• Write down the name on
the name tag, as well as the
rank, of the official to
whom you give the Order.
Make sure you have the
correct information. This will
help you to keep track of the
Order at a later stage.
• The court will indicate how the Protection Order is to be served to the abuser by the police. Police
will personally take the Protection Order to the abuser. If the Protection Order is to be served by
the police, take it to the police. A police officer will have two copies of the Protection Order. One
copy must be signed by the abuser when served to him/her and given back to the police official.
The other copy is left with the abuser.
Sir, I am serving you with
a Protection Order, which
will be used against you in
favour of your wife. If you
break the terms of the
order, you will be arrested.
• The police now send
a document to
the court called
the Return of Service,
also called the Proof
of Service. This is
something like a
receipt. It proves that
the respondent has
received the
Protection Order.
• Go to the Magistrate’s Court after 14 days to check that they have received the Return of
Service. The Clerk of the Court will now give you a Warrant of Arrest. Keep it in a safe place -
it is very important. If your abuser tries to abuse you again, you can take this Warrant of Arrest
to the police, who may arrest him.
I’ve come
to check if
you have the
Return of
Service.
We do. Here is your
Warrant of Arrest. You
can use this to have the
man charged with the
offense of contravening
the Protection Order
if he tries to abuse you
again.
1414

Does the accused have a chance to speak
Yes. The Court is fair and allows the respondent an opportunity to state
his side of the story before the Warrant of Arrest is issued.
After you return to court to see if they have given the served Return of
Service to the Clerk of the Court, and before the Warrant of Arrest is issued,
the court may ask the respondent to appear in court for a civil hearing.
This is not a court case. It is an informal meeting between you, the
respondent and the Magistrate, to give the respondent an opportunity to
state his side of the story.
I did not beat her. It
was someone else
who did it. I want
to file an Opposing
Affidavit.
The respondent may want to make his own statement, disputing the facts
in your affidavit. His statement is called the opposing affidavit. A copy
will be given to you.
You will then have an opportunity to file a reply. The Clerk of the Court will
help you to draft a reply. The Magistrate will look at the original affidavit,
the respondent’s opposing affidavit, and your reply, and make a decision
as to whether or not to issue the Warrant of Arrest.
If the respondent fails to appear at the civil hearing, the Magistrate will
confirm the Order and the Warrant of Arrest will be issued, if he is satisfied
that the respondent received the documents that required him to appear
in court.
What if he abuses me again
If the abuser repeats the abuse, he is in breach of the Protection
Order. You may now take the Warrant of Arrest to the police, who
may then arrest the abuser. The decision to use the Warrant of
Arrest is yours. Once arrested, the abuser will be tried in a criminal
court and face possible incarceration.
Can the charges be withdrawn
A Protection Order can be set aside, but charges can only be withdrawn with the permission of the
prosecutor.
Many abusers persuade their victims to have the Protection Order cancelled or withdrawn. Then they
abuse their victim again. Women should be very cautious before setting aside a Protection Order. It is a
useful means of protection, and does the job of keeping the abuser in check. If you decide to stay with an
abuser, keep the Protection Order for as long as possible.
A Protection Order is there to protect you.
Use it - don’t throw it away.
1515

The SAPS Commitment to the Victim
It is the commitment of the SAPS to treat the victim of domestic
violence with sensitivity and care.
The SAPS will:
• Treat you with respect and dignity
• Listen to what you have to say
• Not insult or blame you or suggest that it was your own fault that you were
abused
• Assist you with empathy and care
• Inform you of your rights and options
• Make an effort to find someone to address you in a language you understand
• Take your statement in privacy and not in the presence of the abuser or the
public
• Decide, on the basis of your statement, whether to arrest the abuser and take
his/her firearm, as well as determine your needs and how to assist you.
The SAPS will also assist you, where possible to:
l
l
l
Obtain medical assistance
Find a shelter, and
Find counselling.
The SAPS will inform you of:
l
l
l
l
l
l
l
l
The support services which are available in the area
Shelters in the area if you need to leave your home
Counselling services
Nearby hospitals
Ambulance services
Medical practitioners
Services that are for free, and
The time of day these services are available.
It will also be ensured that a medical officer collects and records any medical evidence in
support of a criminal charge.
You will be accompanied to your home to assist you in collecting personal property, if this is
provided for in a Protection Order issued by the court.
1616

Commercial Crime
I’m a gospel artist, and I’ve just
released my second CD. I put a
lot of love, sweat and time into
producing that CD. It’s been
released at a price of R120.
Imagine how I felt when
I entered a music store
and found them selling
my CD at R15 each.
This is what happened:
The shop owner punched and shoved me,
and actually threw me out of his shop.
My friend, how did you get
this CD of mine at such a low
price that you can afford to
sell it at R15 This CD has just
been released, and the cost is
supposed to be R120!
Get out of my shop, you
interfering woman! What’s
it got to do with you Get
out, get out!
The shop owner behaved in this terrible way towards
me because he had a guilty conscience. He had
bought counterfeit CDs, produced by thieves who
live off the hard work of other people.
Have you ever bought a CD at a good price from
some small shop, thinking you were lucky to get
such a bargain Listen carefully to the sound - it is
never as good as the original CD.
The buying and selling of counterfeit goods has become part of a growing form of corruption and criminality in
South Africa called commercial crime.
Commercial crime takes many forms, and includes cheque and card fraud, deposit slip scams and identity
theft. We need to be highly aware when using bank cards, revealing personal information and trusting people
who appear to be offering help.
There is a special unit of the police service dedicated to fighting commercial crime. It is called the SAPS
Commercial Branch. Report all commercial crime to SAPS Commercial Crime on (012) 393 2108.
The selling of counterfeit goods is a crime.
Phone SAPS Commercial Crime on
(012) 393 2108 or visit www.saps.gov.za
1717

2. Services to help you
There’s so much crime in
our area. What are the
police doing about it
What are you
doing about
it The police
can do so much
better if we
cooperate with
them.
The success of anti-crime operations depends on the police and communities working
together. Have you heard about the following services
CRIME STOP
Ph: 08600 10111
My neighbour’s
son is stealing
copper cables and
manhole covers. This
endangers our whole
community.
I’m reporting him
to Crime Stop.
Phone Crime Stop to report illegal activities
in your area. If you know anything about a
crime being planned or already committed,
give your information anonymously to Crime
Stop by phoning 08600 10111, 24 hours a day.
Your anonymity is guaranteed. In some cases,
rewards are offered.
Have I visited your child’s school recently Invite me
over! I’ll give a child-friendly talk that will educate
your youngsters about why crime does not pay.
Phone Captain Crime Stop: 08600 10111.
Community Policing Forums
All towns and rural areas in South Africa have a Community
Policing Forum (CPF). In the CPF, the police and community
members work together to fight crime. They discuss the
problems in their area and come up with ideas to overcome
the problems. The police then put these ideas into practice.
You could be a member of the CPF nearest you. Every Station
Commissioner is responsible for establishing a CPF, so ask at
your nearest police station. If there isn’t a CPF, you have the
right and the responsibility to get one started!
1818

Family Violence, Child Protection and
Sexual Offences Unit
I suspect
that a certain
child in my
community is
being sexually
abused. What
should I do
If an assault is suspected, report
it to the police. Sexual assault in
South Africa is a big problem. We
must report every incident.
Because family violence is so common in our country, the police have a special unit dealing especially
with family violence, the protection of children and sexual offences. It is called the Family Violence,
Child Protection and Sexual Offences Unit (FCS Unit). Many police stations have detectives trained
by an FCS Unit.
The staff in these units receive specialised training in dealing with family violence. Violence in the family
is a crime like any other, and the police must listen to your complaint, and may arrest the perpetrator.
Even if your nearest police station does not have detectives trained by the FCS Unit, report all violence
and sexual assault at your nearest police station. They will refer you to a unit of the FCS.
To contact your nearest provincial branch of the South African Police Services,
see page 33.
Police Reservists
There have been five
housebreakings in
my area in a month.
This makes me angry.
What can I do
If you’re really
interested
in stopping
crime in your
town, why not
join the police
reservists
The South African Police Service welcomes members of the community who want to help fight crime
the legal and disciplined way - by volunteering as a Police Reservist.
As a Police Reservist you get a thorough basic training in all aspects of police work, including the
handling of a firearm. You are required to do a minimum of 16 hours voluntary police work per month
(about two days), but may do more if you wish to.
To become a Police Reservist, you must
• be a South African citizen, 18 years or older
• speak English
• have no criminal record
• have no visible tattoos.
Police Reservists are needed in urban and rural areas. You need no specialised skills, only a good
character and the willingness to serve your community. Contact your nearest police station to find
out details.
1919

Useful numbers
The Department of Justice and Constitutional Development (012) 315-1111
The South African Police Services
Emergency calls to police 10111
SAPS Head Office (012) 393-1000
SAPS Crime Stop 08600 10111
Corruption Helpline 0800 201 414
Anti-Corruption Hotline 0800 701 701
Police Reservists (011) 407-0125
National Firearms Call Centre (012) 353-6111
Community Police Forums (Department of Safety
and Liaison) (011) 355-1800
Victim Empowerment Programme (Department of
Safety and Liaison) (011) 355-1865
Independent Complaints Directorate (ICD) (012) 392-0400
Safe Schools Call Centre 0800 454 647
Crime-line SMS tip-off (anonymous) Sms tip-off to 32211
Child Protection and Counselling
Childline 0800 055 555
Johannesburg Parent and Child Counselling Centre (011) 484-1734/5/6
South African Council for Child Welfare (011) 339-5741
Johannesburg Child Welfare Society (011) 331-0171
Institute for Child and Adult Guidance (Emotional and
Behavioural Therapy) (011) 489-310
Safe Schools Call Centre 0800 454 647
Report Child Abuse
Childprotect@saps.org.za
Protection and Counselling of Women
People Against Women Abuse (POWA) (011) 642-4345/6
National Network on Violence Against Women (012) 348-1231/2
Durban Advice Desk for Abused Women (031) 262 5231
Network on Violence Against Women (021) 633-5287/ (031) 304-6928
Stop Women Abuse Hotline 0800 150 150
The Commission on Gender Equality (011) 403-7182
Poor Service Delivery can be reported at the following number 086 013 0860.
2020

3. Under arrest -
know your rights
The purpose of arresting someone is to make sure that they appear in court. It is not a form of
punishment.
What to expect should you be arrested:
You will be treated with respect and human dignity, e.g:
• You will be informed of the reasons for your arrest
• You will be detained in a police detention facility
• You will be informed of all your rights including the right to be released on bail
• When arrested and in possession of personal items, these are still your own, if they have nothing
to do with the crime. Depending on the nature of the item, it can be collected by a person you
trust or it will be kept in safety by the police and you will sign for it. Remember, even the person
you trust will have to identify themselves and sign for the items.
Powers of the police
There are also internal regulations that govern the conduct of police officials. Should police officials
contravene these laws and regulations, they will be disciplined. There are laws that govern what the
police may do when searching or arresting people.
Force
The police may use only as much
force as is necessary to stop a person
from resisting arrest or escaping.
The police may not assault anyone.
The police may not torture you.
Searching
Police are empowered to search persons, property and even premises, with due regard to the right
to privacy. Through searching, the SAPS ensure a safe and secure environment for all.
They may search without a search warrant if
• it is a road block
• they suspect that you have illegal guns, drugs or liquor
• it is a matter of extreme urgency and they have reason to think that getting a search
warrant would give you enough time to hide the evidence.
2121

Can a woman be body
searched by a man
No, a woman may not be
body searched by a man,
and a man may not be body
searched by a woman.
Your rights if arrested
You will be detained in police facilities for 48 hours at most.
From the time of arrest, an arrested person
has these rights:
• to see a lawyer
• to remain silent, except that
you must give your name and address
• to see a doctor, if necessary
• to wear your own clothes
• to access food according to
prescribed rations.
Once you are being held in a cell, you
have the right to:
• family visits as prescribed by
the police station
• friends or family may bring food
or clothes for you at the police
detention cells (the food or clothes may
be searched before being handed over
to you).
The police must take you to court within 48 hours of your arrest - unless it is a weekend or public
holiday, in which case they must take you before 4 pm of the first court day in session.
Searching
If you are
arrested, do
not struggle or
swear at the
police.
Give the police your name and
address, and show them your ID
book if asked. Otherwise, keep
quiet. Ask to phone a family
member, friend, or lawyer.
2222

Bail
For lesser crimes (e.g. driving a vehicle at a speed
exceeding a prescribed speed limit) arrested
persons may request bail from a police officer. You
need a lawyer for bail application in court.
There are three kinds of bail
• police bail
• bail by certain prosecutors
• court bail
The law governing bail
is called the Criminal
Procedure Act.
This Act makes it very
difficult to get bail for
serious crimes. The police
will explain to you when
a crime is serious or less
serious for the purposes of
determining bail.
Police bail
Police bail is the bail which the police are authorised by law to grant to suspects.
Bail must be paid in cash. The suspect must receive a receipt, stating when he or she must appear
in court. Police bail is refundable. Keep your bail receipt in order to claim the refund later.
Bail by certain prosecutors for offences such as public violence, culpable
homicide, grievous bodily harm and housebreaking
Under certain circumstances a suspect may
request to be granted bail if police bail cannot be
granted and the court is not in session. A suspect
has the right to ask the police to phone the duty
prosecutor to request bail. He or she may agree,
depending on the charge. After the suspect has
paid, he or she must be released and appear in
court the following day. If the prosecutor refuses to
grant bail, the suspect has to stay in detention until
the court hearing, and then request court bail.
I’m requesting you to phone the prosecutor
on duty to request bail. There are special
circumstances in my case.
Court bail for offences such as
murder and rape
On the first day that the suspect appears in court
he or she can request court bail. Before granting
bail, the magistrate or judge has to be satisfied
that the suspect will not run away or be a danger
to others. The suspect has to show that he or
she has a fixed address, a job, and a family to
support. If you miss the court date, you will be
arrested. Take note of the bail conditions, as you
may be arrested, should you break them.
I’m releasing you on bail. Keep your bail receipt and
make sure you come to court on the day written on
this bail receipt. Never miss a court date.
2323

Under arrest - Khaya’s story
Khaya, the police have assaulted you
and that is not legal. You must tell the
magistrate when you appear in court.
Lawyer I
don’t have
a lawyer.
Police assault will have an impact
on your case. Also, you can lay a
criminal charge against the police.
Ask your lawyer how to do it.
Khaya, too many people appear in court and are
incarcerated with no lawyer to defend them.
You must have a lawyer. When you get to court
tomorrow or the next day, ask the Prisoner’s Friend
to tell you if you qualify for one via Legal Aid.
The Prisoner’s Friend
The Prisoner’s
Friend What’s that
Most courts have a person called the Prisoner’s
Friend. Sometimes the Clerk of the Court acts as
the Prisoner’s Friend. The job of the Prisoner’s
Friend is to help you make phone calls, organise a
lawyer, find witnesses, etc. If you don’t know what to
do, ask to see the Prisoner’s Friend.
2424

If you cannot get a lawyer
via Legal Aid, ask the
court for a postponement
of your case, so you have
time to organise one.
Now Khaya, what are
you charged with, and
what statement have
you made
Of course, it’s not
compulsory to have a
lawyer. You can defend
yourself if you want to
- but it’s risky.
I - I’m not sure. I was with a woman I know -
she says I raped her, and that I stole her stuff.
I got into a fight with her brother ... none of it’s
true Mike, it’s all lies!
Yes, but what is
the charge
I don’t know.
Khaya, you must be told what the charges
are. The police cannot arrest and hold you
without telling you what you are charged
with. If they don’t tell you, ask!
If arrested, remember:
• The police may not assault you. If they do, tell the magistrate.
• The police must tell you what the charges are. If they don’t, ask. If
they still don’t, they are acting illegally. Tell the magistrate.
• You may defend yourself, but it is usually better to get a lawyer. If
you cannot afford one, and if you qualify, the court may appoint
one for you from Legal Aid. See page 54.
• If you do not have a lawyer, ask the court for a postponement. A
postponement may be granted to give you time to find a lawyer,
prepare your case, and find witnesses.
2525

Now, Khaya, do you know
what to expect when you
appear in court
No! I’ve never been to
court before!
Well, it can
be a long
process. The
first thing to
understand
is what
happens at
your pretrial
hearing.
The pre-trial hearing
Your first day in court is called your pre-trial hearing. At your pre-trial hearing, your charges will be
read to you, and you will be asked to plead.
The prosecutor
will read the
charges to you.
The magistrate will ask you to
plead. This means to say whether
you are guilty or not guilty.
Only plead guilty if
• you did what the prosecutor said you did,
and
• you did not have a good reason to do it.
Plead not-guilty if
• you did not commit the crime or
• you did commit it, but you had a good reason
for doing it. This reason will form part of your
argument plea.
Now Khaya, your pre-trial hearing
is very important. You can ask for
release on bail. You can also ask for a
postponement of your case. You can
report any bad behaviour by the police.
If you have a lawyer, discuss your case carefully
with your lawyer, and be sure of how you intend
to plead.
Remember that once you appear in court and
are released on bail, you are no longer in the
hands of the Police. You are now in the hands of
the Department of Justice and Constitutional
Development.
We’ll talk more about how court cases proceed
later! (See page 34.)
After you have pleaded, the magistrate or judge may ask you some questions to make sure you understand
the charge. If you plead not-guilty, the magistrate or judge may want a few details about what your defence
is. Keep your answers short - this is still the pre-trial hearing, not the actual trial.
Find out more about your rights and responsibilities in court at www.doj.gov.za
2626

When a child is arrested
Aagh! Help! I’ve been
arrested!
How old are
you, son
17.
I’ll follow you to the
police station to make
sure that you are
treated according to
the law.
Anyone under 18 is considered a child. We know that many
children commit serious crimes. But young people can change
and many, if given the right help, do change.
All over the world, governments have recognised that children need special help
and protection when they break the law. South Africa has signed many international
agreements on the rights and correct treatment of children, for example, the United
Nations Convention on the Rights of the Child and the African Charter on the Rights
and Welfare of the Child.
We also have our own Constitution, which says that “a child’s best interests are of
paramount importance in every matter concerning the child”.
Officer, I know the law
when it comes to the
arrest of minors. The
Child Justice Act of 2008
says that you cannot just
put him in a cell and leave
him there until his court
appearance. Instead, he
must be assessed by a
probation officer within 48
hours of arrest.
The Child Justice Act, hmm
2727

The Child Justice Act 75 of 2008
The Child Justice Act is an important law, introducing many new ideas and procedures into the child justice
system. All police officers and social workers should know this law.
One of the main principles of the Child Justice Act is the principle of diversion.
Through the Act every
effort is made to help
children to change
their ways.
A child cannot appear
in court without an
assessment or a
preliminary hearing.
The Act says:
Age
• A child is anyone aged under 18, but not yet 18.
• A child aged 9 or under cannot be prosecuted. He or she should be handed to the parents or
appropriate adult, or the child- or youth-care centre.
• A child aged 10 – 13 can stand trial if, after assessment, he or she is considered capable to
stand trial – but sentence cannot include incarceration. This means that the prosecutors
must prove that the child understood the difference between right and wrong and could act in
accordance with this understanding.
• A child aged 14 and over can stand trial and sentence can include incarceration, which means
imprisonment or detention in a Child and Youth Care Facility but a child may not be incarcerated
with adults. Wherever possible and appropriate, a child’s sentence should include an alternative to
incarceration.
Assessment
• As soon as possible after a child is arrested, and before
48 hours have passed, he or she must be assessed
by a probation officer. Probation officers are
employed by the Department of Social Development.
• The police have a duty to contact a probation officer as
soon as the child is arrested.
• The probation officer must
- assess the child’s age (many arrested children do not know
their age)
- decide whether the child can be diverted out of the criminal
justice system and into some other form of correctional care
- decide whether the child needs to be removed from parental care.
• Assessment must take place in a private office and parents
must be present, unless it is in the best interest of the child
to exclude them while the child is interviewed.
Hello. I’m Mark,
your probation
officer. May I have
a little chat with
you
2828

Preliminary Enquiry
• A preliminary enquiry must be held after the assessment within 48 hours of the arrest, and
takes place in place of the first court appearance of the child concerned.
• The aim of the preliminary enquiry is to decide whether the child should go to trial or be
diverted out of the criminal justice system.
• If the child does not want to accept responsibility and be diverted from the criminal justice
system, the preliminary enquiry must ensure that the child receives legal representation for
his or her appearance in court.
Uncle Mark, I’m
scared.
Don’t be scared. This is not a court
case. We’re just doing a preliminary
enquiry. It’ll help us decide on the
best way forward.
The Act is very strict about time periods. There should be no delays between the time of the child’s
arrest and the assessment, preliminary enquiry and possible court appearance. Only under very
special circumstances may the preliminary enquiry be postponed.
Legal representation
After the preliminary enquiry, a child may be placed in detention to await trial, but must be placed
separately from adults. During this time the child must be provided with legal representation at the
State’s expense. A lawyer representing a child must have additional training in dealing with children.
If a child is to get a lawyer through Legal Aid, this should not involve any delays.
And you’re lucky in another way, young man. The Child Justice Act
sets out many alternatives to incarceration. If you are sentenced,
you can be sentenced to one of these options.
All the options that can be used to divert you out
of the criminal justice system instead of a trial,
can also be used as your sentence after a trial.
Make up your mind to make the most of whatever
opportunity you are given - it is for your own good!
2929

Sentencing and diversion options
The law has created many ways to help children to take responsibility for their
actions and to change:
• Community work, up to 250 hours over 12 months.
• Residential sentences: The child stays in a special residence, not his own home.
• Postponed sentences: A sentence is passed, but postponed for up to three years.
• Suspended sentences: This means that if the child commits a certain type of
offence, within a certain period up to five years after the trial, then the child
will receive punishment.
• Penalties, such as paying compensation or repairing items that were damaged.
• Detention in a Child and Youth Care Facility
• Correctional supervision, where the child stays at home, but is supervised by a
Correctional Official. This is a community-based sentence which a person
is subjected to in accordance with the Criminal Procedure Act, 1977 (Act 51 of
1977) and the Correctional Services Act, 1998 (Act 111 of 1998).
• Restorative justice: This is a fairly new idea in South Africa, but has been
used successfully in many countries and is gradually becoming more widely
used in South Africa.
Restorative justice is a process that usually takes place prior to a court case.
However, it could also take place before sentencing or even after sentencing
while the person is serving his/her sentence. It means that the offender, victim,
their families and a mediator sit down to discuss the
incident, in a family group conference. The aim is to
get the offender to understand what he has done, to
feel remorse, and to do something to pay back the
person he has wronged. The family group conference
then makes a recommendation to the court.
The strength of restorative justice is that it reaches
perpetrators of crime at an emotional level.
One-Stop Child Justice Centres
The Act provides for the establishment of One-Stop Child Justice Centres, where an arrested
child can be assessed, given a preliminary hearing, held until trial and tried, all under one roof.
3030

4. Who do I complain to
When dealing with the police, things do not
always go as they are supposed to. If you know
your rights, you can take the correct course
of action. Make your complaint to the right
person. All complaints that have to do with
the police can be made in the following ways:
Option 1
State your complaint to the person who offended you.
Officer, I reported a
burglary three days ago, to
you. So far, no one has been
to my house to investigate.
I’d like to know why not.
Option 2
Phone your complaint to SAPS Service
Inspectorate,
ph: 0860 130860.
The SAPS Service Inspectorate is an internal monitoring
body that upholds standards within the police service.
You can state your complaint to them.
Option 3
Contact the Independent Complaints Directorate (ICD) if you received poor service.
3131

The Independent Complaints Directorate
Ph: (012) 392 0400
The Independent Complaints Directorate (ICD) is an independent government department which
investigates complaints of misconduct amongst members of SAPS as well as the municipal police.
If you or someone you know has been mistreated, seriously injured or killed while in custody, or if you
have evidence of police corruption, you should contact the ICD. They will help you to lay a criminal
charge against the police. They have the necessary authority to investigate such cases.
Remember that the ICD deals only with complaints about the police.
It is not for complaints against court or correctional officials, but
SAPS and municipal police only.
Contact the ICD, ph: (012) 392 0400 or visit www.icd.gov.za
Useful numbers
Other Family Protection and Counselling Services
Family and Marriage Society of South Africa (011) 975-7106 / (011) 788-4784/5
Halt Elder Abuse Line (HEAL), office hours only 0800 003 081
Centre for Study of Violence and Reconciliation / Trauma clinic (011) 403-5102
The Trauma Centre for Survivors of Violence and Torture (021) 465-7373
Johannesburg Parent and Child Counselling Centre (011) 484-1734/5/6
Lifeline (Cape Town) (021) 461-1111/3
Lifeline (Johannesburg) (011) 728-1331 / (011) 728-1347
Lifeline (Port Elizabeth) (041) 585-5581
Institute for Child and Adult Guidance (Emotional and
Behavioural Therapy) (011) 489-3106
3232

Rape Crisis Centres
Cape Town (021) 447-9762
Port Elizabeth (041) 484-3804
Pretoria (012) 342-2222
Pietermaritzburg (033) 394-4444
FAMSA Provincial Contact Numbers
Western Cape (021) 447-7951
Eastern Cape (041) 585-9393
Northern Cape (053) 832-1087
Mpumalanga (017) 631-1593
Gauteng (011) 788-4737 / 4739
KwaZulu-Natal (031) 202-8987
Free State (051) 525-2395
North West (018) 293-2272
Limpopo (015) 307-4833
Department of Social Development
Western Cape (021) 483-3083
Eastern Cape (040) 609-3400
Northern Cape (053) 839-5104
Mpumalanga (013) 766-3031
Gauteng (011) 355-7878
KwaZulu-Natal (035) 874 3703
Free State (051) 405-4821/4444
Other Organisations dealing with Rights and Responsibilities
The Commission on Gender Equality (011) 403-7182
The Community and Citizen
Empowerment Programme (IDASA) (012) 392-0500
The Local Government Centre (IDASA) (012) 392-0500
The Open Democracy Advice Centre (ODAC) (021) 467-5673
The Independent Complaints Directorate (012) 392-0400
The South African Prisoners’ Organisation
sapohr60@yahoo.com
National Institution for Crime Prevention and
the Reintegration of Offenders (NICRO) (021) 462-0017
Judicial Service Commission (051) 447-2769
Magistrate’s Commission (012) 325 3951
Commission for the Promotion and Protection of the
Rights of Cultural, Religious and Linguistic Communities (011) 339-1775
3333

5. dealing with the courts
Dealing with the police is one aspect of dealing with the law. Dealing with the courts is
another aspect.
Courts fall under the Department of Justice and Constitutional Development.
Courts can be confusing places, and it helps to have a basic understanding of law.
There are two parts to law: Criminal Law, and Civil Law.
CRIMINAL LAW
CIVIL LAW
In criminal law, a complainant lays a charge
against someone for breaking the law. The
accused person is called the suspect, or the
accused. The State prosecutes the suspect,
because he or she has broken a law of the
land.
In civil law, two people have a dispute,
which they cannot resolve on their own.
The State does not take sides in civil law.
The plaintiff feels he or she has been
wronged by another person, and brings a
civil case against that person, who is called
the defendant.
Civil law deals with divorce, maintenance,
debt, traffic offences, poor workmanship,
injuries, evictions, disputes over Hire
Purchase, etc.
Sometimes a person’s behaviour can result in both criminal
and civil actions being taken against them. For example, if an
employer beats his worker, the worker can lay a criminal charge
against the employer because he committed the crime of assault.
The State will therefore prosecute in a criminal court.
The worker can also sue the employer in a civil case, making him
pay compensation for medical expenses, lost wages and pain and
suffering. The civil claim is conducted in a different court - the
civil court.
3434

Know which court to go to
Before you take a matter to court, know
which court your problem applies to.
Firstly, is it a criminal or a civil case Perhaps
it requires two cases, both criminal and civil.
Criminal cases include theft, murder, rape,
housebreaking, assault, etc. It is a criminal
case if a law has been broken.
Civil cases include divorce, maintenance,
debt, traffic offences, poor workmanship,
injuries, assault, and others.
Some courts hear both criminal and civil
cases.
Magistrate’s Courts
Magistrate’s Courts are lower courts.
The magistrate makes the decisions in the
Magistrate’s Court, sometimes helped by two
lay assessors (respected members of the
community).
There are two types of Magistrate’s Courts:
Lower courts
• criminal courts
• civil courts
1
Criminal Courts
In Criminal Courts, the State prosecutes
people for breaking the law. There are two
kinds of criminal courts:
• Regional Magistrate’s Courts
• District Magistrate’s Courts
So, as a victim of
assault, I can lay
a criminal charge
and take the
perpetrator to
criminal court, and
I can sue the person
in a civil case, and
take him to civil
court. Two separate
trials will take place.
3535

Regional Magistrate’s Courts
Regional Magistrate’s Courts, sometimes just called Regional Courts, are found only in big towns
and cities. They deal with more serious crimes, like rape, armed robbery, serious assault and
culpable homicide. The only criminal cases which a Regional Court may not hear are murder and
treason. These must be held at a High Court.
Regional Courts have not heard civil cases in the past, but a new law is about to be passed
granting them powers to do so.
District Magistrate’s Courts
I live in a village. When a
dispute arose between my
neighbour and me, we went
to our customary court.
But I was not happy
with the outcome. So
I exercised my right
to request an appeal. I
appealed to the nearest
District Magistrate’s Court.
District Magistrate’s Courts, sometimes just called Magistrate’s Courts, are found in most towns
in South Africa. They try less serious crimes and they also hear civil cases. They may also hear
appeals from customary courts.
Certain special courts operate from a Magistrate’s Court to hear specific criminal and civil
matters:
Juvenile Court
Child Justice Courts hear criminal cases
involving children under 18. These cases
are closed to the public.
If the judge feels that the child on trial is
not receiving proper care at home, he may
refer the child to the Children’s Court,
so that they can decide who should care
for the child. The criminal case is put on
hold while the Children’s Court comes to
a decision. Once a decision is made, the
criminal case may continue in the Child
Justice Court if appropriate. Otherwise,
the child can be found in need of care and
protection and the case will be handled by
the Children’s Court and social workers.
This child is
obviously being
neglected.
I cannot
continue with
this case until
he is properly
cared for. I
am sending
you to the
Children’s
Court.
3636

2
Civil Courts
District Magistrate’s Courts also hear civil cases where claims are for less than R100 000. There are
certain matters that they cannot deal with, i.e. divorce, disputes about a will, and disputes about whether
someone is sane or insane. There are different types of Civil Courts:
Maintenance Courts
Maintenance Courts are found in the Magistrate’s Court. See page 53 for more details.
The father of my child refused to pay maintenance,
so I went to see the Maintenance Officer at the
Maintenance Court. She helped me fill in the forms
and forced the father to appear in court. Now he pays
maintenance monthly into my account.
Children’s Courts
Children’s Courts are found in the Magistrate’s Court. They protect children from abuse and neglect.
They deal mostly in matters to do with fostering and adoption. As explained under Juvenile Courts,
a child on trial in a Juvenile Court may be referred to a Children’s Court so that it can decide who
should care for the child. Children’s Courts can place children under the supervision of a Social
Worker or place children into foster care or Children’s Homes. If you wish to foster or adopt a
child, you must do so through a Children’s Court.
Orders relating to the care and protection of a child, in terms of the Child Care Act, 1983 (Act No. 74
of 1983) and the Children’s Act, 2005 (Act No. 38 of 2005) will come into operation later this year.
Family Courts
Family Courts are found in some Magistrate’s
Courts. They hear cases that have to do with
family law, i.e. domestic abuse and divorce.
If there is no Family Court in your nearest
Magistrate’s Court, then you will have to take
family law matters to your nearest High Court,
or the nearest Maintenance Court, Domestic
Violence Court or Divorce Court.
Family Courts do not operate full time. Most
magistrates will hear Family Court cases for
an hour or two a day, before moving on to
their criminal cases.
When my boyfriend
abused my child, I laid
a charge and had him
arrested.
The case was
heard at the
Family Court.
Small Claims Court
This is a special court set up in most Magistrate’s Courts to help people claim debts owed to
them. The amount claimed has to be R7 000 or less. The Court is cheap, quick, and very useful
for ordinary people with disputes to settle. See page 44 for more information.
3737

High Courts hear criminal and civil cases. They usually hear very serious cases. They also hear appeals
and reviews against judgements made in Magistrate’s Courts. High Courts are the only courts that can
make an order which changes a person’s legal status, e.g. bankruptcy, being mentally unfit, divorce
cases.
Cases in High Court are heard by judges, who are appointed by the President, and paid by the
government. Cases in High Court cost more money than cases in Magistrate’s Courts.
• In civil cases, only one judge hears the case, unless it is an appeal, when at least two
judges must hear the case.
• In criminal cases, one judge hears the case, but he may be helped by two assessors, who
are usually advocates or retired magistrates.
Constitutional Court
High Courts
Our Constitution is the highest law in the land. It is the document
which says that all people have certain rights, and explains the
principles of democracy according to which South Africa must be run.
No laws passed by Parliament may contradict the Constitution.
If any organisation or government department tries to do something
which is unconstitutional, they may be challenged in the Constitutional
Court. Sometimes a ruling in the Constitutional Court forces
Parliament to change a law which is considered unconstitutional.
The Supreme Court of Appeal
This is the next highest court in the land. It only hears appeals from the High Court.
Special Courts
There are courts which specialise in certain matters:
• Labour Court deals with disputes about the Labour Relations Act. Most cases in Labour
Court come via the Unions.
• Labour Appeal Court deals with appeals from the Labour Court.
• Land Claims Court deals with land claims by communities.
• Tax Courts hear cases to do with trying to avoid payment of tax.
• Water Courts hear disputes over water.
• Equality Courts are special courts set up to hear cases about unfair discrimination (but not
employment discrimination, which is dealt with by the Labour Court).
• Customary Courts are run by chiefs or headmen and hear civil and criminal cases. If
parties are not satisfied with a ruling in a customary court, they can appeal to the District
Magistrate’s Court.
3838

the criminal court case -
Khaya’s story
Khaya was arrested and charged with the serious crime of rape. Therefore, his case will appear
in the High Court. At his pre-trial hearing, he pleaded not-guilty. He was released on bail. It is
now 6 weeks later, and his court case is tomorrow.
Khaya, all criminal
cases follow more
or less the same
pattern. Let’s go
over a few things
you can expect
tomorrow.
OK.
The State presents its case
Your lawyer cross-examines
“The prosecutor
will call
witnesses, and
question them.
He is trying to
show, from their
answers, that
you did rape the
woman. Do not
argue or shout
out - your turn
will come.”
“Your lawyer
asks the State’s
witnesses
questions to
try to show
how weak their
evidence is. He
wants to show
that they have
no real proof of
what they accuse
you of.”
The prosecutor re-examines
The prosecutor closes the State’s case
“The prosecutor questions his
witnesses again, trying to show that
they do know what they are talking
about.”
“The prosecutor believes he has proved all he needs to prove.
He ‘closes his case’. Now it will be your lawyer’s turn to present
your case.”
3939

Possible discharge
If the State’s witnesses
have been really weak, and
there is clearly no evidence
to convict you, your lawyer
may ask for a discharge.
That means there is no
case, and you are free to go
with no case against you.
The defence presents its case
“Your lawyer will
call your witnesses.
If you, as the
accused, decide to
testify, you will be
the first witness.
You’ll make an
oath, swearing to
tell the truth. You
should know what
questions to expect,
because you and
your lawyer should
have discussed this
carefully before the
case.”
Important!
The judge and prosecutor
listen very carefully to the
defendant when he speaks
under oath. They will be
listening for contradictions. It
is important to know the facts,
and stick to the truth from the
beginning.
NOTE: You, as the
accused, are not obliged
to testify. It is advisable
that you discuss this
matter very carefully with
your lawyer.
The prosecutor cross-examines you
Your lawyer re-examines you
“The prosecutor
questions you. This is
where giving evidence
can be tricky. The
prosecutor will do
everything he can to
trip you up, make you
say things that can
damage your case.
For this reason, some
lawyers prefer their
clients not to speak
at all. You will have to
decide with your lawyer
whether or not to give
evidence.”
“Your lawyer
questions you
again, trying
to show that
you are indeed
innocent, or
guilty of a lesser
crime than the
one you are
accused of.”
Cross-examination of witnesses
Your lawyer closes his or her case
“Your lawyer will call
other witnesses who can
support your story.
• The prosecutor
will crossexamine
them.
• Your lawyer will
re-examine them.”
“Your lawyer
believes he has
done everything
he can to show
that you are
innocent. He
closes his or her
case.”
4040

Argument
The Prosecutor gives argument why the State should find you guilty. These are his closing
remarks, summarising everything he believes he has proven. Your lawyer also gives
argument, saying why the State should find you innocent.
Judgement - not guilty
Judgement Judgment -- guilty not guilty
“The judge
has listened
carefully to
both sides,
and now says
whether he
or she finds
you guilty or
not guilty. If
you are not
guilty, you are
acquitted (free
to go). Now
you can go and
claim your bail
money back.”
“If the judge
finds you
guilty, you get
a chance to
ask for your
punishment to
be lighter. This
is called giving
evidence in
mitigation.”
Any one of these things can get you a
lighter sentence:
• You’re very sorry for what you did.
• You’re younger than 18.
• It is your first offence.
• You have family responsibilities.
• You have health problems that
could get worse if you are
incarcerated.
• You have already done something
to make up for what you did, e.g.
paid the victim money, returned
stolen goods. This is where
Restorative Justice helps
(see page 30).
Sentence
The Magistrate or judge now says what your punishment will be.
Punishment at a District Magistrate’s Court is up to 3 years incarceration or a fine up to R60 000.
Punishment at a Regional Magistrate’s Court is up to 15 years incarceration or a fine up to R300 000.
Punishment at High Court can be anything up to lifetime incarceration.
You can, of course, ask for leave to appeal, or to review the case.
4141

Appeals and Reviews
If you lose a trial, whether criminal or civil, you can request an appeal or a review.
An appeal means a request to a higher court to look at
the evidence again in order for it possibly to come to a
different decision. You have to ask the Magistrate’s Court
for leave to appeal. If you are refused, you may request
the High Court itself to grant you leave to appeal.
Cases in the Magistrate’s Court are appealed in the
nearest High Court. Cases in High Court are appealed in
the Supreme Court of Appeal. Usually no new evidence
is heard in an appeal, so it is important to say everything
you want to say in the first court that hears your case.
It is very expensive to take a case on appeal. If it is a criminal case, you
pay your own legal costs, whether you win or lose. In a civil case, the
loser pays both his own legal costs and the legal costs of the person
who wins. This applies to the trial itself, as well as the appeal.
A review means to request a higher court to look at the proceedings
again, and to come to a different decision because something about
the proceedings in the first case was not correct.
In other words, a review is requested when you suspect that
• the judge or magistrate was corrupt
• the judge or magistrate was biased against you from the start
• you were not given a fair chance to explain yourself.
In some cases, review is automatic. You do not have to request it - for example, if you did
not have a lawyer, or if the magistrate has worked for less than 7 years as a magistrate.
Otherwise, you have to request it. If you do this, you will have to explain in writing why you
think you deserve a review. You will probably need a lawyer to do this.
The Rules of Procedure for Judicial Review of Administrative Action
On 17 February 2009 Parliament approved the Rules of Procedure for Judicial Review of
Administrative Action to ensure access to justice for all. The rules will, upon coming into effect
sometime this year, allow anyone who has been negatively affected by decisions of the government
to approach Magistrate Courts to review those negative decisions. More importantly, the rules make
it possible for members of the public to request reasons for particular decisions made.
4242

Civil cases - you don’t have to go to court
In civil cases, much time and money can be saved if we learn to
sort out our problems ourselves. Courts are already overloaded.
They are slow, expensive and take people out of work for days or
weeks at a time. There are ways to avoid an expensive court case:
Talk about it
Get together with the person with
whom you have a difference and
negotiate. Many problems can
be solved if we are willing to
put in the time, listen carefully,
and explain our point of view
reasonably.
Ask a third party to
help you talk
A third person can help you to talk
it through by mediating for you.
This means he or she helps you to
structure the talk; he listens, asks
questions and helps you reach an
agreement.
Ask for arbitration
Arbitration means that a third
party, called the arbitrator, listens to
both sides of the story and makes
a decision, to which both parties
must agree. Many labour disputes
are resolved in this way, through
the Commission for Conciliation,
Mediation and Arbitration
(CCMA).
4343

Small Claims Court
The Small Claims Court is a special court that was set up in
Magistrate’s Courts to help ordinary people who cannot afford
lawyers. Use the Small Claims Court to claim money that is owed
to you, if the amount is R7 000 or less. (This amount goes up from
time to time.) You must claim within three years of the event.
The Small Claims Court is almost free to use. A small fee is charged for the use of the sheriff.
You cannot use the Small Claims Court for
• divorce
• matters concerning a will
• wrongful incarceration
• seduction
• breach of promise to marry
• malicious prosecution
You cannot use the Small Claims
Court against any branch of National
or Provincial Government, or against
the police. You can use it to sue a
municipality, company, organisation or
individual but a municipality, company or
organisation may not sue an individual
through the Small Claims Court.
I was owed R8 000
but decided to
reduce the amount
I was claiming to R7
000, so that I could
use the services of
the Small Claims
Court. This was still
easier and cheaper
than going through a
Magistrate’s Court.
Examples of small claims
My friend has borrowed
money from me and
refuses to pay it back
despite a written
agreement!
I asked a contractor to
do minor alterations to my
house, and he destroyed
some of my furniture
while working. He refuses
to pay anything!
I got into an argument
with my neighbour and he
beat me so badly, I had
to see a doctor. This cost
me money, and I want my
neighbour to pay!
Someone drove
into my car causing
R6 000 worth of
damage. I asked
him to share costs,
but he refuses.
Now I want to
claim the whole
amount from him.
4444

How do I use the Small Claims Court
Let us take the example of Sylvia, who worked
three days as a casual but was not paid.
Step 1
Sylvia tries to sort the matter out with her ex-employer.
Always try to discuss things reasonably with the other
person before turning to the court. Court is a last resort
only.
By speaking face to face, Sylvia gives her ex-employer
a chance to change his mind and settle the matter out of
court. Many problems can be solved if both parties are
willing to listen, and to compromise. It is worth the effort
to solve things amicably, and not to bother the courts.
Sylvia’s ex-employer, however, refuses to see her.
Step 2
The Letter of Demand
Sylvia goes to her nearest Small Claims Court (situated
in the Magistrate’s Court) and asks for a form called a
letter of demand. On this form, she fills in what she
is claiming and why. She makes a copy of this letter to
keep for her records.
She delivers the letter by hand to her ex-employer. If she
prefers, she can send the letter by registered post.
Registered post
If you send a letter of demand by
registered post, ask the post office to
send a pink A.R. card with the letter.
When the other party receives the
letter, he or she must sign the pink
card and send it back to you. This is
your proof that they have received the
letter of demand.
Keep the certified registered slip from the post office,
as well as the pink card, together with your copy of
the letter of demand, to use in court later.
4545

Step 3
The Summons
• Now Sylvia takes her copy of the letter of demand, and proof that it was sent (the slip from the
post office and the pink card) to the Clerk of the Small Claims Court.
• The Clerk issues a summons. Sylvia can either take this summons to her ex-employer herself, or
pay the Sheriff of the Court to do it. The Sheriff’s fee is a small fee.
• In the summons, Sylvia’s ex-boss is given 10 days to pay the claim. If he does not pay, he must
appear in the Small Claims Court by a certain date, written on the form.
The Statement of Defence
If he wants to, Sylvia’s ex-employer can hand in a statement of defence to the Clerk of the Small Claims
Court. This is a letter explaining why he did what he did. However, it is not necessary to write this letter.
The party being taken to court will still have an opportunity to defend him- or herself in court.
Step 4
The Trial
At the trial, a lawyer acts as the
judge, and is called the Small Claims
Commissioner. He or she listens to
both sides, and asks questions. Both
sides may call witnesses to support
their cases. They can bring evidence
if they have any, e.g. photographs,
invoices, receipts, etc. If the party
being sued does not appear in
court, the court will continue with
the proceedings if there was proper
proof of service to the defendant/
party sued to come and appear in
court on that specific day.
Sylvia’s case is clear, and she wins
her case. Her ex-employer is required
to pay the outstanding amount.
Can the decisions be appealed
Small Claims Court cases are not appealable, but can be reviewed in the High Court. In rare cases, the
decision can be reviewed by a Magistrate’s Court. This applies if
• the Commissioner judging the Small Claims trial was biased or corrupt
• the proper court procedure was not followed
• the case should not have been heard in the Small Claims Court in the first place.
4646

Other Civil Cases
Magistrate’s Courts hear criminal and civil cases.
If you have a complaint against a person, company, organisation or municipality for an amount above
R7 000 but under R100 000, you can sue them in a civil case. If the amount claimed is more than
R100 000, then you need to go to the High Court nearest you.
Examples of civil cases:
Fred bought a secondhand
car from a dealership
for R60 000. After three
weeks the engine broke
down and had to be
replaced. Fred wants his
money back.
Fred can sue the
dealership in a civil
case at his nearest
Magistrate’s Court.
A factory is spewing
polluted water into the
ground near a residential
area. The smell affects
the whole neighbourhood,
and is affecting the health
of children who play near
the puddles.
This is a good example of a civil
case where a whole community
may sue a company for damage to
health, decline in property values,
etc. The community needs to form a
group, collect evidence, e.g. photos,
doctor’s reports, and get a lawyer.
Mr Munro reports to
his local municipality
that a tree outside his
yard has been partially
uprooted in a storm and
is in danger of falling
over. They do nothing
about it. One day the
tree falls, crushing Mr
Munro’s car.
M r M u n r o c a n s u e
the municipality for
negligence. He needs
to collect as much
evidence as he can
before approaching a
lawyer.
Xolani’s boss assaulted
him so badly that he had
to be hospitalised. He
also took time off work
to recover, and lost
income.
Complex and expensive
This assault is a reason for
both a criminal case (because
assault is a crime) and a
civil case (to claim for pain
and suffering, lost income,
medical bills, etc).
Civil cases are complex and expensive. They can take years to resolve, and can drain you of
finances. Some lawyers will take a case on a contingency basis. This means they agree not
to charge fees, but to take 25% of the claim, should you win your case. A lawyer would have
to be very sure that he or she can win your case before agreeing to this.
4747

How do I make a civil claim
Step 1
Collect evidence
Photographs, doctor’s reports, names and addresses of witnesses,
etc.
Step 2
Make a statement
This step is not essential, but many people have found that it helps
to get support from an advice office or paralegal. Make a statement
at an advice office, to a paralegal. This is a written account of
exactly what happened.
Step 3
Get a lawyer
Lawyers are expensive. Try to use a lawyer who specialises in cases like
yours. Speak to people who have used lawyers; get a recommendation,
if possible. Don’t assume that all lawyers are the same. Help with legal
costs is available from various sources. See page 54.
Your lawyer takes your statement and turns it into an affidavit, which is
simply a statement which you swear to be true, confirmed by a lawyer
or police officer.
Your lawyer then writes a letter of demand to the other person, giving
him a reasonable time to respond. If he fails to respond to your
satisfaction, your lawyer then sends a summons, which is a request
to be in court on a certain date. The other party then gets a lawyer.
Step 4
The Trial
Both lawyers present their client’s cases, calling witnesses where
necessary. The magistrate then makes a judgement. The loser pays
all his own costs, plus most of the costs of the other party.
What if the losing party
is ordered to pay, but
never does
A Warrant of Execution
Then you
can get a
Warrant of
Execution
against him.
A Warrant of Execution is a document giving the Sheriff of the Court power to go to the
defendant’s home and attach his property, i.e. list the items that he owns. He then removes the
property and sells it to cover the defendant’s unpaid debts. If the defendant lacks sufficient
property, the court may order the defendant to pay a monthly amount, or have it deducted from
his salary, by arrangement with his employers.
4848

6. divorce and maintenance
Divorce
Because divorce is so traumatic for all parties involved, and so expensive, couples should
consider all means of reconciliation before they turn to this option.
Many marriages have gone on to a deeper understanding and commitment by seeking help,
rather than separation. FAMSA specialises in family counselling.
FAMSA
The Family and Marriage Association of South Africa (FAMSA) offers free counselling
to individuals and couples. This organisation has been active in South Africa since
1954 and has branches throughout the country.
The principles on which FAMSA counselling is based are
• basic human rights
• openness, tolerance and respect
• accessibility to all people
• confidentiality.
FAMSA promotes healthy, functional family life, but they will also help mediate when
a couple has decided to divorce.
Phone: (011) 975 7107 or e-mail: national@famsa.org.za. Numbers for various
provincial FAMSA offices can be found on page 33.
4949

If divorce is the only option ...
• The partner seeking the divorce
takes his or her marriage
certificate and goes to see
a lawyer.
The more a couple can agree on and organise
themselves before they approach a lawyer for help
with a divorce, the better. Divorces are expensive
and emotionally draining. The more you can agree on
beforehand, the more time and money you will save,
and the easier the process will be.
Most divorces are conducted through the High Court.
If the divorce is very simple, and there are no conflicts
over children, money, etc. it is also possible to get a
divorce through the District Magistrate’s Court. This
option was made available to help those who would
not be able to afford a divorce otherwise. It is a cheap
option, but can be slow.
Briefly, the process for getting a divorce is as follows:
• The lawyer draws up a summons
against the other spouse.
• Attached to the summons is a
document called the Particulars of
Claim. This document says what the
divorcing partner is claiming, e.g.
money, custody of children.
• If the other spouse disagrees with the
claims, he or she sends a Notice of
Intention to Defend to the court within
10 days. If the couple has already agreed
to the terms, then they write down their
agreement on a Consent Paper.
• In this case, the divorce is much
simpler and cheaper. Only the divorcing
spouse has to appear in court. It is a
good idea to get a lawyer’s advice
before signing a consent paper, so
that you fully understand what you are
agreeing to.
• If the other spouse defends, both
partners must attend the court
hearing, each with a lawyer.
A divorce can be inexpensive and over fairly quickly if both parties agree on the terms
beforehand. Settle as much as you can without a lawyer, because lawyers are expensive.
5050

Problems in divorce
The two issues which cause the most problems in divorce are
• custody of the children
• how to divide up the property.
Custody of the children
The court’s most important consideration is what is in the children’s
best interests. Divorcing parents sometimes cannot see this clearly.
If they are struggling to reach an agreement, they can approach the
Family Advocate for help before the divorce is finalised. The Office
of the Family Advocate is made up of lawyers (family advocates) and
social workers (family counsellors) who work together, using a holistic
approach, to determine what is in the best interests of the children.
They do so through the writing of reports after careful investigation
of the specific family’s situation; appearing at the trial or hearing of
any relevant application; providing evidence; and cross-examining
witnesses at such a trial or hearing of an application.
The Family Advocate
Contact your local Family Advocate to request an enquiry or mediation
of your legal dispute. It is a free service (this excludes the costs of
any forensic testing or evaluation that may need to be done in some
cases). To obtain the details of your local Family Advocate contact
the Chief Family Advocate’s National Office at (012) 357 8022 or
NationalOffice-FA@justice.gov.za.
If the divorce takes a long time to finalise, the judge may grant an
interim custody order, giving one of the parents temporary custody
of the children until the divorce is through.
The Family Advocate also looks after the best interests of children, in
terms of parental rights and responsibilities, in cases where children
are born out of wedlock, while the Chief Family Advocate is also the
responsible official in International Child Abduction cases, in respect
of abductions to and from South Africa.
I’m a Family Advocate, and I work for the
Department of Justice. My job is to help
decide what is best for the children in
situations where their parents have ended
their relationship and it needs to be decided
how the parents’ responsibilities to their
children need to be divided in the future.
I listen to both sides, ask questions,
interview the children and make
recommendations to the court. I give all this
guidance before the court case. I cannot
represent either party in court, or appear
as a witness, nor can I intervene once the
matter has been finalised by the Court.
Separation is painful
Divorce is painful for all concerned, but much more so for children
than for adults. Children continue to need and benefit from having
contact with both their parents. No matter what you think of your
former spouse, try to see life from the perspective of your children.
Come to an arrangement that allows your children a reasonable
amount of time with both parents.
5151

Community of Property
In a divorce, who gets what depends on the way in which you
were married. The simplest of all arrangements is in community
of property. If you did not draw up any special contract before
your wedding, you are automatically married in community of
property.
In community of property, the couple work out the value of
everything they own, divide it in half, and each partner gets half.
Gifts and inheritances are not included.
Ante-nuptial Contract
If you drew up an ante-nuptial contract before your wedding, it
may have been with accrual or without accrual.
Accrual simply means “increase”. With accrual means that
everything the spouses owned before they married remains their
own, and the value of everything they bought during the marriage
(the increase in their estate) is split in half. Each partner gets their
own possessions, plus half the value of the possessions bought
during the marriage. Without accrual means that everything the
spouses owned before, and everything they bought during the
marriage, remains each person’s separate property.
In community of property: Work out
the monetary value of everything
the couple owns. Divide that amount in half. Each person gets half.
Can you change the legal form of a marriage after marriage
Many people, married in community of property, find that this form of marriage contract is inconvenient, and
wish to change. Being married in community of property means that every business transaction, including
the buying of property, carried out by either partner requires the signature of the other partner. For many
people this becomes impractical.
It is possible to change the legal status of a marriage, but it is expensive. It requires a lawyer, and is done
through the High Court.
Ante-nuptial contract with accrual
Everything that was yours before
the marriage remains yours.
The accrual (gain or profit)
of each spouse during the
marriage is calculated.
5252
The monetary value of the
things bought during marriage
is worked out. The spouse with
the smaller accrual gets half of
the difference between the two
accruals.

Maintenance
Mom and Dad
may be cross
with each
other, but they
brought me
into the world,
and they are
both equally
responsible for
my care!
Children have a right to a home and
care, and both the father and the mother,
who together created the child, are
responsible for providing this. Providing
a home and care is called maintaining
the child.
A child’s right to be maintained has
nothing to do with whether or not the
parents love each other, or agree with
each other, or approve of each other’s
style of parenting.
Unfortunately, many men do not see things this way. Fortunately, the Maintenance Act
protects children by making maintenance compulsory.
The Maintenance Act
If the parents cannot agree on financial arrangements to support their child, the parent living with the
child can go to the Maintenance Court to claim maintenance.
This does not have to be the mother.
• Any family member who cares full-time for a child can apply to the Maintenance Court for
one of the parents, or the parents of one of the parents, to provide maintenance.
• The person from whom maintenance is claimed must be able to afford it.
How to apply
Ask to see the Maintenance Officer at your nearest Maintenance Court. He or she will help you fill in
the necessary forms. You will also have to work out your monthly expenses and show these clearly
written down. Maintenance can be claimed as
• a cash payment, made to the court each month, from where you will have to go and collect it
• direct payment into your account
• garnishee order: The company for which the person works deducts the maintenance
amount from his salary and pays it into your account.
Maintenance Courts employ full-time investigators to track down and investigate the finances of
parties who try to dodge maintenance.
You can also increase the maintenance amount by applying at the Maintenance Court.
Fathers have rights. A law called the Natural Fathers of
Children Born Out of Wedlock Act gives us the right to
apply for custody and guardianship of our children. We
also have certain rights when it comes to our children’s
surnames.
5353

7. Paying for a lawyer
I don’t know what to do! I’m late
with my rent payments. I promised
to pay next month, but my landlord
has ordered me to leave. I’m evicted,
with no one to help me!
This sounds
like a case
for Legal
Aid. You
need a
lawyer to
help you
fight this.
How
much is
Legal
Aid
The last time a fee was set, it
was R750. This remains the same
whether your case takes 6 hours or
6 months.
Come, let’s look up
Legal Aid in the
phone book. There’s
a Legal Aid Board in
most towns in South
Africa.
Thank you,
my friend. I
should not
have panicked.
There’s always
some source
of help.
Lawyers are expensive, but there are options available to help you. Legal Aid is one of them. There
are also University Legal Aid Clinics, Advice Offices and Legal Resource Centres.
The Legal Aid Board
Legal Aid Boards are also called Justice Centres. They help people who cannot afford lawyers to
defend their cases in court, whether criminal or civil. Legal Aid is paid for by the Department of Justice
and Constitutional Development. The client pays a relatively small fee.
There are conditions for using Legal Aid. You cannot get Legal Aid for
• criminal cases where you plead guilty
• maintenance
• divorce - if you have used Legal Aid before
• traffic offences or drunken driving
• cases to do with relationship problems, like seduction or breach of promise to marry
• shoplifting
• theft
• possession of drugs
• domestic violence
However, if your case is strong enough, then even if it is one of these examples, you can still apply for
Legal Aid. The Director of Legal Aid will decide if your case warrants their help.
5454

The Means Test
To qualify for Legal Aid you must pass a means test.
Your salary must be below
a certain amount to pass
the means test. Your salary
means the money left over
after these deductions have
been made: pension, medical
aid, income tax, rent or bond
repayments.
If you are applying
for Legal Aid
for divorce, then
only one person’s
income and
deductions are
considered.
How to find a Legal Aid Board
• There is a Legal Aid Board in most towns. Call the number provided on page 56 to find
an office near to you.
• If there isn’t a Legal Aid Board in your town, go to your nearest Magistrate’s Court and
ask to see the Legal Aid Officer. He or she will help you fill out the correct forms.
• If you think you need a lawyer who will be sympathetic to your case, and you have a
recommendation, go to the lawyer first and ask him or her to help you apply for Legal
Aid to pay his or her fees.
University Law Clinics
Most universities have a Legal Aid Clinic.
My ex-husband gave me endless
problems with maintenance. I
was desperate. The Legal Aid
Board doesn’t take maintenance
cases - but the university Legal
Aid Clinic does.
I phoned the university
nearest me and asked
for the number of their
Legal Aid Clinic. They
were very helpful.
The advantage of university Legal Aid Clinics is that they do not exclude certain types of cases.
You can go to them for help with traffic offences, maintenance, etc.
Senior law students take the cases. They are not qualified lawyers, so they cannot represent you
in court, but they can give excellent advice, write letters and negotiate settlements.
Other options
• Most cities have Advice Offices. The staff are not lawyers, but paralegals, which
means they know a lot about the law. They can give advice, help you with letters, etc.
• Legal Resource Centres deal with human rights cases, involving whole
communities. They are privately funded, so their services are free.
• Various lawyers associations may take on special cases. There is Lawyers for
Human Rights, the Black Lawyers Association and the National Association of
Democratic Lawyers.
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Get the most out of your relationship with your lawyer
From the time a lawyer agrees to take your case,
he or she works for you. You can expect good
service from him or her. Your lawyer has certain
responsibilities.
Your lawyer’s responsibilities
He or she should
• listen to you
• answer all your questions in a way that you understand
• answer letters that you send, and return messages that you leave on the telephone
• tell you how much the fees and expenses are at any stage of the proceedings
• give you information on the progress of your case whenever you ask for it.
After your case, your lawyer must send you an account. If you do not understand the
account, he or she must explain it to you.
Your responsibilities
You, the client, also have
certain responsibilities. To
avoid frustration, and ensure
a smooth and productive
relationship, make sure you do
your part:
Remember that yours is not the only case your lawyer is working on.
• If you want to see a lawyer, make an appointment first.
• Before your appointment, get all your information and papers together so that time is
not wasted.
• Do not be late for your appointment. If you think you may be late, or you cannot make
it, phone and reschedule a time.
• After you have told the lawyer your problem, ask him or her what he or she can do to
help you. Remember that lawyers cannot solve all problems.
• Ask how much the case will cost you. If you do not have enough money, ask the
lawyer to apply for Legal Aid for you.
• If the lawyer asks you to do certain things before the next appointment, do them.
Otherwise there will be no progress on your case, and it will not be the lawyer’s fault.
• Do not just turn up at your lawyer’s office any time you want to. Phone and make an
appointment first.
Legal Advisory Organisations
Legal Aid Board (011) 877-2000 / (012) 481-2700
Law Society of South Africa (012) 366-8800
The Women’s Legal Centre (021) 421-1380
Community Law Centre (021) 959-2950/2951
Western Cape (021) 887-7529
Eastern Cape (041) 484-1663
Northern Cape (053) 832-5166
Free State (058) 304-1034
Gauteng (011) 403-0704
KwaZulu-Natal 082 723-4860
Mpumalanga (017) 683-0822
Limpopo (015) 295-9243
North West (018) 462-9083/3183
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8. Correctional Services
Joe speaks:
Remember me I’m the guy
whose family was attacked
and house robbed. My
family and I went through
a lot of trauma and I
was determined to see
the criminals caught and
convicted.
I had the right to offer
new information when
I thought of it. I had
the right to be given
information. And, after the
thieves were finally caught,
tried and incarcerated.
I had the right to make
representations to the
Parole Board.
I reported the crime, and I
took down the CAS number.
I also found out the name
of the investigating officer
and phoned frequently to
enquire about progress on
the case.
From the Charter for
Victims of Crime, I learned
that I had certain rights.
All of us have that right. If you
have been a victim of crime, you
can make representations to the
Parole Board when the offender
is considered for parole.
Here’s how:
What do correctional centres and remand detention facilities achieve
Correctional Services distinguishes between correctional centres for sentenced inmates and
remand detention facilities for inmates awaiting trial and unsentenced inmates. Cabinet took
a decision that inmates who have not been sentenced yet, should be housed in dedicated
remand detention facilities.
We have a high crime rate in South Africa. Most of us have strong opinions on what to do about it.
What do correctional They’ve destroyed our centres lives - lock achieve
them up and let them suffer. They
have no rights!
Some offenders show so little
decency and compassion, that we
feel this way about them.
I’m an offender - 20 years old.
Sentenced to seven years for robbery.
I want to change. But how will I ever
change if I have no skills, and no one to
trust me enough to employ me when I
get out
Some offenders took a wrong turn
in life, and regret it. With the right
help, and something to live for,
they can change.
I hate society and society hates me. I
will continue to rob, rape and kill, as I
am the only one who cares about me.
Other offenders display this kind of
attitude. They have no conscience,
and are a danger to society.
Somewhere between these extremes, our correctional centres and remand detention facilities have to find the right way to deal
with inmates. Correctional centres and remand detention facilities strive both to protect society and to rehabilitate inmates.
5757

As part of its transformation, the Department of Correctional Services has introduced positive
changes to its services. Some of these changes involve far greater community participation:
Centres of excellence
The Department of Correctional Services has identified 36 Centres of Excellence, which should ideally
be adequately resourced to implement the principles outlined in the White Paper on Corrections 2005.
Eventually the Department wants to have all its facilities functioning as Centres of Excellence.
Release Preparation Programmes
In compulsory Release Preparation Programmes, offenders receive therapy/counselling in alcohol and drug
awareness, dealing with stigma, where to find further skills training, crisis and anger management, street law,
financial planning and family planning so that they enter community life as law-abiding citizens.
Community Corrections
Ex-offenders are released gradually into the community through supervised parole, day parole and house arrest.
Discussion Forums
What if we don’t want ex-offenders back
in our community I used to feel that
way - until I got involved in community
discussion forums.
These are groups of correctional officials
and community members who meet regularly
to discuss where to place and how to treat
ex-offenders.
Have your say in how ex-offenders re-enter the community. Find out more about parole board hearings
and discussion forums on the website www.dcs.gov.za
Contributing to parole board meetings
Inmates may be released early on parole before they have served their full sentences. During their parole periods they
will have to comply with specific conditions and will serve the rest of their sentences in the community under the close
supervision of the Department of Correctional Services. This is one of the ways in which inmates are helped to become
accustomed to life outside of the correctional centre, and to support them - if they show signs of wanting to become
productive members of society.
If you, as a victim of crime, would like to contribute to the decision-making process regarding an offender’s parole, this is what you do:
• Write to the Parole Board for the relevant correctional centre, requesting to be informed of the date of the inmate’s parole
meeting. The Parole Board will reply and will provide you with further information.
• You must give your ID number and postal address as well as the inmate’s name, case number, the date and the name of
the court and the offence. The Department of Correctional Services will keep your contact details confidential.
• The Parole Board will then inform you if the inmate dies, escapes, or is transferred.
• When the inmate is considered for parole, you will be informed and invited to give input. You may ask to be informed of
the developmental programmes the inmate has participated in. Such a request may only be adhered to if the inmate has
consented to it.
• If you do not want to attend the Parole Board meeting personally, you can write a letter or make submissions on a tape
recorder and send in the cassette.
• At the Parole Board meeting, you will be given a chance to say how the crime has affected you. Your input will help
decide whether or not the inmate gets parole. It will also help to decide the conditions under which parole may
be granted. You will not take part in the actual decision-making, but your information, together with information
about the rehabilitation process, will be taken into consideration.
• The Board will also consider other factors, e.g. How well has the inmate responded to rehabilitation Are you, the victim, safe
from this person Are there support systems in place to help the inmate re-integrate into society When all factors have been
carefully weighed, including your input, a decision is made.
Further information can be obtained from any Parole Board. Their contact particulars can be obtained from any correctional
facility, including Community Corrections offices or in the local telephone directory.
5858

9. Things we need to know
Every now and then we find
ourselves in close contact
with an arm of government
- perhaps with the police
(applying for a firearm licence)
or the Department of Justice
(reporting the estate of a
deceased person).
When we know which
Department to deal with, and
understand the process, life is
so much simpler. Not knowing
the law can have serious
consequences!
Owning a firearm
Two and a half million South Africans own guns legally - and many more own
them illegally.
However, even the legal ownership of a gun does not guarantee that the person
or those around him are safe. The Firearm Control Act of 2004 says that it is not
enough to have a licence - you now need a competency certificate as well.
Apply for both at your nearest police station. The competency certificate requires
that you show proof of training in the correct handling of a firearm from an
accredited trainer. The safe where you intend to keep the gun will be inspected,
and both your partner at home and your employer will be interviewed to determine
your competency to manage a gun.
Report unlicenced
firearms to the
police. It is a
crime to own a gun
without a licence.
If a licenced firearm
owner threatens to kill, or
abuses alcohol or drugs, or
easily becomes violent, or
fails to keep the gun safe
from children, report that
person too!
If you own a gun for self-defence, your licence must be renewed every 5 years.
Reporting the estate of a deceased person
They will not
automatically lose
their licence. They will
be asked to attend a
hearing, and given a
chance to defend their
actions. If found unfit,
their licence and the gun
will be removed.
When someone dies while owning any property or possessions, the death must be reported to the
Master of the High Court (or your nearest Magistrate’s Court if the estate is worth under R50 000).
Your estate is
the property and
possessions that
you leave behind
when you die.
If you have a
will, your estate
will be divided
up according to
your wishes.
Every person
should have a
will! It is easy
to write. You
can get a basic
will form from a
stationery shop.
If you don’t
have a will, we
say you have
died intestate.
Dying intestate
makes life very
difficult for
those you leave
behind.
If you don’t report the death of a person to the Master of the High Court or your nearest Magistrate’s Court
within 14 days of the death, you will incur delays and expenses when dividing up the property.
Contact: The Master of the High Court, ph: (012) 315 1207 or e-mail: Chiefmaster@justice.gov.za
5959

10. Redress
To seek redress means to seek to put right what is wrong.
One of the principles of democracy enshrined in our
Constitution is that citizens have a right to fair treatment.
But what do we do when we are not treated fairly When
government officials and even private institutions treat
us rudely, deliver poor service, neglect their duties and
blatantly break the law
To deal with this, we must know the law.
Know these important laws:
The Promotion of Administrative Justice Act (PAJA)
says:
• You have the right to be informed about matters which
affect you, and to be given a chance to speak and be
listened to.
The Promotion of Access to Information Act (PAIA)
says:
• Government departments must give you any
information you request, if it will help you exercise
your rights.
The Promotion of Equality and Prevention
of Unfair Discrimination Act (PEPUDA)
says:
• No government official or private institution can
discriminate against you on the grounds of race, gender,
sexual orientation, etc.
Knowing the laws is the first step. The next is to know how to handle the
situation if one of your rights, according to these laws, is not met.
6060

Stand up for yourself!
I went to sort out a problem at our local
municipality, and was very rudely treated.
I got so angry, but didn’t know what to do.
We made an appointment to see a
government official, but when we got to her
office, at the appointed time, she was out.
It cost us a lot in taxi fares to get here,
and there was no apology offered. Must we
accept this
We do not need to accept rude or inefficient behaviour from government officials who are
paid to do a job.
If you feel you have a case against an employee of the State, speak up. First speak to the
person or the person’s superior. Explain your case calmly and factually. Say that you are not
happy with the way your problem is being addressed, and explain why.
Don’t get emotional, shout or threaten. Be prepared to listen, but be firm. Tell the person what you
expect. Remember that government officials are required to know and abide by the principles of
Batho Pele - people first (see page 4). You can request a letter of apology, and you can expect that a
remedy to the problem is found, and within a reasonable period of time.
Every government department also has a Communications Officer whose job is to listen to
and address complaints. Request to see the Communications Officer if you are not happy to
deal directly with the person or the person’s superior.
You can also lay a formal complaint.
A formal complaint means a complaint in
writing.
Write to the Department or institution. Be
factual and to the point. State what happened,
the date of the incident, and what you would
like done about it. Keep a copy of the letter.
Make sure you address it to the right person.
If necessary, send a copy to another figure of
authority in the Department, indicating that you
have sent a copy to someone else. This will help
to ensure that something is done about it.
If you do not feel satisfied by the results of these methods, you can seek
help from one of the following organisations:
6161

Organisations which can help
The Public Protector
This institution was set up to investigate wrongful
conduct by government, whether at national,
provincial or local level. This includes all government
employees, such as police officers, staff of
government hospitals, pension payout clerks,
electoral officials and parastatals like Eskom,
Telkom and Spoornet.
The Public Protector does not intervene in courts
and court cases, or in matters involving private
companies or private doctors.
Contact: Private bag X677, Pretoria, 0001
Ph: (012) 366 7000
Fax: (012) 366 7047
Toll-free: 0800 112040
Office of the Inspecting Judge
The Judicial Inspectorate is an independent
office under the control of the Inspecting
Judge. The Judicial Inspectorate, through
independent correctional centre visitors, visits
correctional centres to report on conditions
in which inmates are incarcerated, in order
to assist the Department of Correctional
Services in creating humane and enabling
conditions for rehabilitation and correcting of
offending behaviour.
Contact: G Morris, Private Bag X 9177,
Cape Town, 8000
Ph: (021) 421 1012/3/4
Equality Courts
Equality Courts deal with matters of unfair discrimination - for whatever reason - such as racism,
publication of information that unfairly discriminates, harassment or hate speech. This court aims
to see justice through a process that actively involves the parties concerned and is fairly quick and
informal. However, note that complaints involving jobs need to be taken to the Labour Court, not
the Equality Court.
Equality Courts can be found in the same building as all of the High Courts, as well as many of the
Magistrate’s Courts buildings. You should ask to speak to the Equality Court Clerk. He will help
you to make your complaint.
Contact: (012) 315-1379 or SMosupye@justice.gov.za
The South African Human Rights Commission
Our people are
suffering from
attacks of
xenophobia in
this community.
There is a
complaint that
this hospital
discriminates
against patients
of a certain race.
The company
we work for
withholds certain
benefits and
promotions for
people who are
HIV-positive.
The South African Human Rights Commission
is like a watchdog for democracy.
It makes sure that government and
private institutions stick to the spirit of our
Constitution.
Contact: Private Bag 2700, Houghton,
Johannesburg, 2041
Ph: (011) 484 8300
Fax: (011) 484 1360
These may all be cases which the SAHRC
could help with. Why not contact them to
help understand your options better
6262

The Commission on Gender Equality
This institution specifically protects
people whose rights are violated on
the grounds of their gender, i.e. the fact
that they are a man or a woman. If you
have a gender-related complaint, this
organisation may be able to help you.
Contact: PO Box 3217
Ph: (011) 403 7182
Fax: (011) 403 7188
IDASA
IDASA is an organisation that
helps to strengthen democracy by
encouraging public participation
in government decisions, and
promoting social justice.
Contact: PO Box 56950
Arcadia, 0007
Ph: (012) 392 0500
Fax: (012) 320 2414/5
The Open Democracy Advice Centre
ODAC supports the right for people to have access to information. They support whistle-blowers (people
who report illegal action by others) by giving free legal advice, campaigning for greater protection of whistleblowers,
and in certain cases, litigating against offenders.
Ph: 0800 525 352
The Independent Complaints Directorate
This organisation investigates complaints of criminal
behaviour against the police.
Ph: (012) 392 0400
Let’s keep democracy healthy and strong - know your rights and responsibilities!
6363

Know your service rights
and responsibilities
Prepared by
on behalf of the Justice Cluster
We belong We care We serve
For more information, contact the
Know Your Service Rights and
Responsibilities team:
DPSA
Tel: (012) 336 1063/1183
Private Bag X916
Pretoria
0001
Physical Address
Batho Pele House
116 Proes Street
Pretoria
0001
Department of Public Service 6464 and Administration © 2009